Western National Mutual Ins. Co. v. UND

20010118 Western National Mutual
Insurance Company, Plaintiff and Appellant
v.
University of North Dakota, Defendant and Appellee

Appeal from: District Court, Northeast Central Judicial District, Grand Forks County
Judge M. Richard Geiger
Nature of Action: Insurance
Counsel:
Appellee: Sara Gullickson McGrane , Spec. Asst. Atty. Gen.
Appellant: Serkland Law Firm
Appellant: Lawyer not licensed in N.D.
Term: 01/2002   Argument: 01/29/2002  2:45pm
ND cite: 2002 ND 63
NW cite: 643 N.W.2d 4

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
1. Did Western National's Boiler and Machinery Policy exclude damage caused by flooding?
2. Did the Trial Court err in holding that the concurrent cause provision in Western National's policy is unenforceable?
3. Was there sufficient evidence to support the jury's determination that UND's flooded basements were not caused by the Flood of 1997?
4. Did the Trial Court make certain erroneous decisions at trial which warranted a new trial?
5. Did the Trial Court make certain erroneous decisions at trial with respect to the following issues warranting a new trial?
a. UND's counsels' mention of reinsurance.
b. UND's failure to supplement expert discovery responses.
c. Court's failure to give proximate cause instruction.
6. Was UND's damage amount ever made certain prior to trial in order to allow it to recover pre-judgment interest?
7. Is UND entitled to recover its attorneys' fees?

Appellee's Statement of the Issues:
Did Western National's insurance policy exclude from coverage damages from sewer backup?
Did the district court abuse its discretion in applying the doctrine of efficient proximate cause?
Was the jury's finding that flooding was not the efficient proximate cause of UND's damage manifestly against the weight of the evidence?
Did the district court abuse its discretion in denying Western National's motion for a new trial based on proper trial/evidentiary rulings?
Did the trial court abuse its discretion in not granting motion for judgment as a matter of law on the award of interest pursuant to N.D.C.C.  32-03-04?
Did the trial court abuse its discretion in awarding UND attorneys fees in successfully defending against a declaratory judgment action initiated by their insurer?

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Docket entries:
105/08/2001 NOTICE OF APPEAL: 05/07/2001
205/08/2001 ORDER FOR TRANSCRIPT: 05/07/2001
305/08/2001 Faxed letter dated 5-08-01 from Steven A. Johnson stating that neither he nor his law firm will be
405/08/2001 associating w/firm of Gislason, Martin & Varpness or otherwise representing Western Natl.
505/08/2001 Mutual Ins. Co. in this appeal
605/08/2001 Affidavit of James T. Martin in Compliance with Rule 11.1, Rules of Court
705/09/2001 Original letter dated 5-08-01 from Steven A. Johnson
805/25/2001 Notice of Appearance from Ronald H. McLean of Serkland Law Firm as ND counsel for Appellant
906/04/2001 RETENTION OF RECORD ON APPEAL: 08/04/2001
1006/15/2001 Request for advance payment of transcript fee (Margaret Campbell)
1106/25/2001 MOT. EXT/TIME TRANSCRIPT
1206/25/2001 ACTION BY TRIAL COURT. Granted: 08/04/2001
1308/01/2001 MOT. EXT/TIME APPELLANT BRIEF
1408/01/2001 ACTION BY CLERK. Granted: 10/15/2001
1508/04/2001 TRANSCRIPTS (11 VOLUMES) DATED October 24, 2000, October 25, 2000, October 26, 2000, October 27,
1608/04/2001 2000, October 30, 2000, October 31, 2000, November 1, 2000, November 2, 2000, November 3, 2000,
1708/04/2001 November 6, 2000, January 23, 2001
1808/06/2001 DISK - TRA's filed 8-4-02, 11 Volumes, 3 disks
1908/10/2001 Affidavit of Service for Transcripts filed 8-4-01
2008/20/2001 RECORD ON APPEAL (4 vols.), Exhibts & Depositions (8) Not rec'd: #62 (Return Receipts); 140 (Pl's
2108/20/2001 Exh. 1--large photo); 143(Pl's Exh. 3--large map);225(Def's Exh. 306--large diagram); & 227(Def.'s
2208/20/2001 Exh. 309--large map)
2310/11/2001 MOTION FOR EXTENSION OF PAGE LIMITS (via fax)
2410/11/2001 ACTION BY CHIEF JUSTICE (Western Nat'l may have additional 1750 word; equivalent to 7 pages). Granted
2510/15/2001 APPELLANT BRIEF
2610/15/2001 APPELLANT APPENDIX
2710/25/2001 DISK - ATB
2811/05/2001 MOTION FOR EXTENSION OF PAGE LIMITS FOR AEB (FAXED COPY)
2911/06/2001 ACTION BY CHIEF JUSTICE (UND granted 1750 add'l words for AEB). Granted
3011/07/2001 Original of Motion for Ext of Page Limits for AEB
3111/13/2001 APPELLEE BRIEF
3211/13/2001 APPELLEE APPENDIX
3311/15/2001 DISK - AEB
3411/21/2001 MOT. EXT/TIME REPLY BRIEF & Affidavit of Timothy G. Richard (Faxed copies)
3511/21/2001 ACTION BY CLERK. Granted: 12/07/2001
3611/23/2001 Original Motion for Ext/Time/RYB & Aff/Support (Same as faxed copies filed 11-21-01)
3711/23/2001 Corrected TOA & page 13 for AEB
3811/23/2001 DISK - AEB
3911/26/2001 UND's Response to AT's Motion for Extension of Time (faxed copy)(objection noted)
4011/28/2001 ACTION BY CHIEF JUSTICE (extension will not be overturned). Denied
4111/29/2001 Orig. and 7 copies of UND's Response to AT's Motion for Extension of Time
4212/07/2001 REPLY BRIEF of Appellant
4312/11/2001 DISK - RYB
4401/02/2002 Request for Radio/TV Coverage (AP) (e-mail dated 1-02-02 from Dale Wetzel) (APPROVED)
4501/24/2002 Letter from Sara Gullickson McGrane of 1-24-02, with cy of District Court Memorandum Opinion &
4601/24/2002 Order Granting Partial Summary Judgment and Granting Motion to Amend (distributed to the Court)
4701/29/2002 APPEARANCES: Ronald H. McLean & Timothy G. Richard, James T. Martin; Sara Gullickson McGrane and
4801/29/2002 Julie A. Evans, General Counsel for UND
4901/29/2002 ARGUED: McLean; Gullickson
5001/29/2002 ORAL ARGUMENT WEBCAST
5104/16/2002 DISPOSITION: AFFIRMED
5204/16/2002 UNANIMOUS OPINION: Sandstrom, Dale V.
5304/16/2002 Costs on appeal taxed in favor of appellee
5404/19/2002 Order/Judgment Mailed to Parties
5505/10/2002 MANDATE
5606/10/2002 Corrected Opinion Pages 5, 13 & 14
5705/15/2001 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
5808/20/2007 EXPUNGED - Nonpermanent record items destroyed

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